What you need to know about the debate that kept the Senate up all night

By Travis Zimpfer on February 19, 2016

JEFFERSON CITY, Mo. – Tuesday night into Wednesday morning, the Senate entertained its first filibuster of session over a bill sponsored by Sen. Ed Emery, R-Lamar, that would alter Missouri’s collateral source rule in a few different ways. The debate lasted until approximately 6:16 a.m. Saturday, meaning it spanned for just over 13 hours. The bill was eventually perfected, third read and passed.

Why all the hassle? Over an innocuous sounding piece of legislation? A collateral source rule precludes an injured person’s damages in a civil case from being mitigated by payments or acts of goodwill from a third party source like the defendant, their own medical insurance, workers compensation, etc.

For example, if a man fell into a lion habitat at a zoo because of a flimsy guard rail, he could sue the zoo for medical damages and those damages would not be affected by the fact that he had health insurance to treat his wounds from getting mauled by lions.

Emery

In a slightly more realistic, but different, example, if a woman got into a car accident due to a faulty brake line or broke her neck because the airbag did not deploy properly and she was treated for care by the car company’s insurance policy, the collateral source rule allows her to sue the car company for damages without whatever amount she was paid by the company’s insurance being included in the cost of her reward from the car company.

Emery’s bill would allow defendants (in the previous example, the car company) to present evidence of the actual monetary cost of medical care received by the plaintiff. Even if the damages from that car accident amounted to $500,000, under the current law, the plaintiff could get much more due to a vague “value” of the damages that takes other factors into consideration.

Rich AuBuchon of the AuBuchon Law Firm has lobbied for Emery’s bill. He argues the bill does not try to preclude money from victims of accidents, but only that it seeks to ensure the correct amount is given.

Aubuchon

“We want the person to be able to recover… the true damages that were had, but we also don’t think that a windfall is something the plaintiff should have as well,” he said. “It’s really a truth in damages issue. The national trend has been to ensure that individuals are compensated for their care, but they don’t have uncompensated costs for their damages, but at the same time not give them a free amount of money.”

He went on to explain that some attorneys have abused the current system.

“People who are in the practice of defending and advocating for their plaintiffs have tried to get the most amount of money they can,” he said.

However, Sen. Scott Sifton, D-St. Louis, was one of the senators leading the filibuster against the bill. Wednesday, after the filibuster, he was visibly exhausted in his office, but he still looked intent to argue the legislation. He acknowledged that lawyers were trying to get the most damages possible, but only because many accident victims had such serious injuries that it was difficult to quantify exactly how to compensate them.

Sifton

“We wanted to make sure that we protected accident victims to the greatest extent possible,” Sifton said. “Some of the folks that are impacted by this bill have lost the use of multiple limbs. Many of them can’t walk and many of them are going to be incurring medical expenses as a result of their accident for decades to come.”

Regardless, he said that most people receiving damages got exactly what was deserved.

“In the overwhelming majority of cases, the medical bills incurred by the accident victim are the measure of their medical special damages,” he said. “Most cases, it’s the amount that they were billed that is the nature of their damages.”

Sifton and AuBuchon’s arguments boil down to why it took 13 hours for this bill to get through the Senate. For some people, their livelihoods might depend on getting these damages and the true cost of those damages may be unknown. On the other side of the argument, paying huge sums of cash that are far more expensive than the actual cost of damages could cripple some businesses.

As the bill moves on to the House, Sifton said if the bill came back to the Senate under a substitute, the fight could continue, though it would depend on the state of the legislation. But the upper chamber may have to dip into the midnight oil again.